LAW

In Canada there are 27 federal, provincial and territorial
privacy statutes (excluding statutory torts, privacy requirements
under other legislation, federal anti spam legislation, identity
theft/ criminal code etc.) that govern the protection of personal
information in the private, public and health sectors. Although
each statute varies in scope, substantive requirements, and
remedies and enforcement provisions, they all set out a
comprehensive regime for the collection, use and disclosure of
personal information.

PIPEDA applies (i) to organisations that are deemed to be a
"federal work, undertaking or business" (eg banks,
telecommunications companies, airlines, railways, and other
interprovincial undertakings); (ii) to organisations who collect,
use and disclose personal information in the course of a commercial
activity which takes place within a province, unless the province
has enacted "substantially similar" legislation (PIPA BC,
PIPA Alberta and the Quebec Privacy Act have been deemed
"substantially similar"); and (iii) to inter provincial
and international collection, use and disclosure of personal
information.

DEFINITION OF PERSONAL DATA

"Personal information" includes any information about
an identifiable individual.

DEFINITION OF SENSITIVE PERSONAL DATA

Not specifically defined.

NATIONAL DATA PROTECTION AUTHORITY

Office of the Privacy Commissioner of Canada (PIPEDA);

Office of the Information and Privacy Commissioner of Alberta
(PIPA Alberta);

Office of the Information and Privacy Commissioner for British
Columbia (PIPA BC); and

Commission d'accès à l'information du
Québec (Quebec Privacy Act).

REGISTRATION

There is no registration requirement under Canadian Privacy
Statutes.

DATA PROTECTION OFFICERS

PIPEDA, PIPA Alberta and PIPA BC expressly require organisations
to appoint an individual responsible for compliance with the
obligations under the respective statutes.

COLLECTION AND PROCESSING

Canadian Privacy Statutes set out the overriding obligation that
organisations only collect, use and disclose personal information
for purposes that a reasonable person would consider appropriate in
the circumstances.

Subject to certain limited exceptions prescribed in the Acts,
consent is required for the collection, use and disclosure of
personal information. Depending on the sensitivity of the personal
information, consent may be opt in or opt out. Organisations must
limit the collection of personal information to that which is
necessary to fulfil the identified purposes and only retain such
personal information for as long as necessary to fulfil the
purposes for which it was collected.

Each of the Canadian Privacy Statutes have both notice and
openness/transparency requirements. With respect to notice,
organisations are generally required to identify the purposes for
which personal information is collected at or before the time the
information is collected. With respect to openness/transparency,
generally Canadian Privacy Statutes require organisations make
information about their personal information practices readily
available.

All Canadian Privacy Statutes contain obligations on
organisations to ensure personal information in its records is
accurate and complete, particularly where the information is used
to make a decision about the individual to whom the information
relates or if the information is likely to be disclosed to another
organisation.

Each of the Canadian Privacy Statutes also provides individuals
with (i) a right of access to personal information held by an
organisation, subject to limited exceptions, and (ii) a right to
correct inaccuracies in/update their personal information
records.

Finally, organisations must have policies and practices in place
that give effect to the requirements of the legislation and
organisations must ensure that their employees are made aware of
and trained with respect to such policies.

TRANSFER

When an organisation transfers personal information to a third
party service provider (ie who acts on behalf of the transferring
organisation), the transferring organisation remains accountable
for the protection of that personal information and ensuring
compliance with the applicable legislation. In particular, the
transferring organisation is responsible for ensuring that the
third party service provider appropriately safeguards the data, and
would also be required under the notice and openness/transparency
provisions to reference the use of third party service providers in
and outside of Canada, in their privacy policies and
procedures.

With respect to the use of foreign service providers, PIPA
Alberta specifically requires a transferring organisation to
include the following information in its privacy policies and
procedures:

the countries outside Canada in which the collection, use,
disclosure or storage is occurring or may occur; and

the purposes for which the third party service provider outside
Canada has been authorised to collect, use or disclose personal
information for or on behalf of the organisation.

Under PIPA Alberta, specific notice must also be provided at the
time of collection or transfer of the personal information and must
specify:

the way in which the individual may obtain access to written
information about the organisation's policies and practices
with respect to service providers outside Canada; and

the name or position name or title of a person who is able to
answer on behalf of the organisation the individual's questions
about the collection, use, disclosure or storage of personal
information by service providers outside Canada for or on behalf of
the organisation.

SECURITY

Each of the Canadian Privacy Statutes contains safeguarding
provisions designed to protect personal information. In essence,
these provisions require organisations to take reasonable
technical, physical and administrative measures to protect personal
information against loss or theft, unauthorised access, disclosure,
copying, use, modification or destruction. These laws do not
generally mandate specific technical requirements for the
safeguarding of personal information.

BREACH NOTIFICATION

Currently, PIPA Alberta is the only Canadian Privacy Statute
with breach notification requirements. However, proposed amendments
to PIPEDA would require notice of material breaches be made to the
Office of the Privacy Commissioner of Canada
("OPC") and, in certain circumstances,
to the individuals affected.

In Alberta, an organisation having personal information under
its control must, without unreasonable delay, provide notice to the
Commissioner of any incident involving the loss of or unauthorised
access to or disclosure of the personal information where a
reasonable person would consider that there exists a real risk of
significant harm to an individual as a result. Notification to the
Commissioner must be in writing and include:

a description of the circumstances of the loss or unauthorised
access or disclosure;

the date or time period during which the loss or unauthorised
access or disclosure occurred;

a description of the personal information involved in the loss
or unauthorised access or disclosure;

an assessment of the risk of harm to individuals as a result of
the loss or unauthorised access or disclosure;

an estimate of the number of individuals to whom there is a
real risk of significant harm as a result of the loss or
unauthorised access or disclosure;

a description of any steps the organisation has taken to reduce
the risk of harm to individuals;

a description of any steps the organisation has taken to notify
individuals of the loss or unauthorised access or disclosure;
and

the name and contact information for a person who can answer,
on behalf of the organisation, the Commissioner's questions
about the loss of unauthorised access or disclosure.

Where an organisation suffers a loss of or unauthorised access
to or disclosure of personal information as to which the
organisation is required to provide notice to the Commissioner, the
Commissioner may require the organisation to notify the individuals
to whom there is a real risk of significant harm. This notification
must be given directly to the individual (unless specified
otherwise by the Commissioner) and include:

a description of the circumstances of the loss or unauthorised
access or disclosure;

the date on which or time period during which the loss or
unauthorised access or disclosure occurred;

a description of the personal information involved in the loss
or unauthorised access or disclosure;

a description of any steps the organisation has taken to reduce
the risk of harm; and

contact information for a person who can answer, on behalf of
the organisation, questions about the loss or unauthorised access
or disclosure.

On 29 September 2011, proposed amendments to PIPEDA were
introduced that, if passed, would require that organisations report
to the OPC "any material breach of security safeguards
involving personal information under its control". The
proposed amendments also require organisations to notify an
affected individual "if it is reasonable in the
circumstances to believe that the breach creates a real risk of
significant harm to the individual". The proposed
amendments are not yet in force.

ENFORCEMENT

Privacy regulatory authorities have an obligation to investigate
complaints, as well as the authority to initiate complaints.

Under PIPEDA, a complaint must be investigated by the
Commissioner and a report will be prepared that includes the
Commissioner's findings and recommendations. A complainant (but
not the organisation subject to the complaint) may apply to the
Federal Court for a review of the findings and the court has
authority to, among other things, order an organisation to correct
its practices and award damages to the complainant, including
damages for any humiliation that the complainant has suffered.

Under PIPA Alberta and PIPA BC, an investigation may be elevated
to a formal inquiry by the Commissioner resulting in an order.
Organisations are required to comply with the order within a
prescribed time period, or apply for judicial review. Similarly,
under the Quebec Privacy Act, an order must be complied with within
a prescribed time period.

PIPA Alberta and PIPA BC also lay out a number of offences,
including, but not limited to, obstructing the Commissioner,
knowingly making a false statement to the Commissioner, punishing
whistleblowers, disposing of information to evade an access
request, and failing to comply with an order. In BC, these offences
also include the use of deception or coercion to collect personal
information. In Alberta, these offences also include the
collection, use, or disclosure of personal information contrary to
the Act and failure to provide notice of a breach. Offences are
punishable by a fine of not more than $10,000 for individuals and
$100,000 otherwise.

Under PIPA Alberta and PIPA BC, where an order has been issued
against an organisation or an organisation has been convicted of an
offence under the legislation, individuals have a cause of action
against the organisation for damages for loss or injury suffered as
a result of the organisation's breach of its obligations under
the legislation.

ELECTRONIC MARKETING

Electronic marketing is governed by both Canadian Privacy
Statutes (as discussed above), as well as Canada's Anti-Spam
Legislation ("CASL"). CASL received
Royal Assent on December 15, 2010 and is expected to be in force by
early 2014.

Under CASL it is prohibited to send, or cause or permit to be
sent, a commercial electronic message (defined broadly to include
text, sound, voice, or image messages aimed at encouraging
participation in a commercial activity) unless the recipient has
provided express or implied consent and the message complies with
the prescribed content and unsubscribe requirements (subject to
limited exceptions).

What constitutes both permissible express and implied consent is
defined in the Act and regulations. For example, an organization
may be able to rely on implied consent when there is an existing
business relationship with the recipient of the message, based on
(i) a purchase by the recipient within the past two years; or (ii)
a contract between the organization and the recipient currently in
existence or which expired within the past two years.

CASL also prohibits the installation of a computer program on
any other person's computer system, or causing electronic
messages to be sent from another's computer system, without
express consent, if the relevant system or sender is located in
Canada. In addition, the Act contains anti-phishing provisions that
prohibit (without express consent) the alteration of transmission
data in an electronic message such that the message is delivered to
a destination other than (or in addition to) that specified by the
sender.

CASL contains potentially stiff penalties, including
administrative penalties of up to $1 million per violation for
individuals and $10 million for corporations (subject to a due
diligence defence). CASL also sets forth a private right of action
permitting individuals to bring a civil action for alleged
violations of CASL ($200 for each contravention up to a maximum of
$1 million each day for a violation of the provisions addressing
unsolicited electronic messages).

ONLINE PRIVACY (INCLUDING COOKIES AND LOCATION DATA)

Online privacy is governed by Canadian Privacy Statutes
(discussed above). In general, Canadian privacy regulatory
authorities have been active in addressing online privacy
concerns.

For example, in the context of social media, the OPC has
released numerous Reports of Findings addressing issues including:
default privacy settings; social plug-ins; identity authentication
practices; and the collection, use and disclosure of personal
information on social networking sites. The OPC has also released
decisions and guidance on privacy in the context of Mobile
Apps.

In addition, the OPC has released findings and guidelines
related to the use of cookies and online behavioural advertising,
including findings indicating that information stored by temporary
and persistent cookies is considered to be personal information and
therefore subject to PIPEDA. The OPC has adopted the same position
with respect to information collected in connection with online
behavioural advertising.

In Privacy and Online Behavioural Advertising (the
"OBA Guidelines"), the OPC stated that
it may be permissible to utilize opt-out consent in the context of
online behavioural advertising if the following conditions are
met:

Individuals are made aware of the purposes for the online
behavioural advertising, at or before the time of collection, in a
manner that is clear and understandable;

Individuals are informed of the various parties involved in the
online behavioural advertising at or before the time of
collection;

Individuals are able to opt-out of the practice and the opt-out
takes effect immediately and is persistent;

The information collected is non-sensitive in nature (i.e. not
health or financial information); and

The information is destroyed or made de-identifiable as soon as
possible.

The OPC has indicated that online behavioural advertising must
not be a condition of service and, as a best practice, should not
be used on websites directed at children.

With respect to location data, such information, whether tied to
a static location or a mobile device, is considered to be personal
information by Canadian privacy regulatory authorities. Assuch, any
collection, use or disclosure of location data requires, among
other things, appropriate notice and consent. Most of the privacy
regulatory authority decisions related to location data have arisen
with respect to the use of GPS in the employment context.
TheCanadian privacy regulatory authorities provide the following
test that must be met for the collection of GPS data:

Is the data demonstrably necessary to meet a specific
need?

Will the data likely be effective in meeting that need?

Is the loss of privacy proportional to the benefit gained?
and

Are there less privacy-intrusive alternatives to achieve the
same objective?

This publication is intended as a general overview and
discussion of the subjects dealt with. It is not intended to be,
and should not used as, a substitute for taking legal advice in any
specific situation. DLA Piper Australia will accept no
responsibility for any actions taken or not taken on the basis of
this publication.

DLA Piper Australia is part of DLA Piper, a global law firm,
operating through various separate and distinct legal entities. For
further information, please refer to www.dlapiper.com

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